Will AP govt cooperate with SEC now?

The Supreme Court had given a final stamp on the constitutionality of election notification for panchayat election. It is clearly a war of egos and allegations of mala fides are before the courts of law. The law is settled and decided. The elections have to be held according to Constitutional norms whenever the term of local bodies is completed. The main duty of the Election Commission is to conduct elections. If SEC has scheduled elections, it cannot be termed as mala fide. Not conducting elections is unconstitutional and undemocratic. This must be retold many times by the Supreme Court, every time the AP government wants the Supreme Court to tell them what to do.

Justice Sanjay Kishan Kaul rightly asked 'where is acting in mala fide manner'. In response learned counsel said we had nothing to do with tiff with the individual. Judge said that he got that impression from the way appeal is drafted.

The fact is that the political executive is asking judiciary to do the job of different functionaries like an Election Commissioner, a Chief Secretary and a leader of employees' union. Decisions must be taken at administrative level. They cannot defer it for the final opinion of the Supreme Court.

The decision of the SC is dismissal of the Special Leave Petition. The real purpose of law is that the State must abide by the judgment of High Court. The division bench's decision is not appealable. The general law did not provide for appeal over such decision. Exceptionally the issue can be taken in appeal but for that you need leave of the court.

When law provides for no appeal, one has to take leave of court. When leave is not granted by the High Court, Special Leave can be granted under exceptional circumstances, if the SC is convinced. The AP Government should have stopped its legal fight after the decision by the division bench. When it was asking for special leave, the SC was not convinced and rejected the leave. It is not full- fledged rejection of appeal, but it is rejection of permission for appeal.

When the SLP is dismissed, the division bench decision of High Court will be final order as the Supreme Court refused to interfere. It is rather impossible for the Courts to identify the mala fides of each party behind their decisions and actions. The Government challenged notification of SEC as malicious (=guided by bad faith) and SEC challenged the decision of High Court single judge bench using the same ground, among others.

Question is, how a court can consider exercise of legitimate power as mala fide? It is easy to contend, but difficult for advocates to convince and complex for judges to decide on mala fides amidst the constitutional functions of two important wings of the 'State'. It is unfortunate that like the Jagan's Government and SEC, several State organisations and wings of the government are fighting each other at the cost of people's money, in the highest courts of law. The Courts have to spend their quality time on these internal feuds or ego issues, instead of considering the breach of human rights requiring urgent attention. How can courts decide challenges motivated by political rivalry and mala fides or mutual lack of trust?

In a landmark decision, in Election Commission of India vs Ashok Kumar & Ors., (https://indiankanoon.org/doc/ 1247997/) the SC held that according to Article 329(b), the elections couldn't be called in question until the process is not finished. While exercising the powers conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published, according to which the areas where the voting was to be done by ballot paper, the counting of such votes was to be done by mixing the ballot papers and not station wise.

Writ petitions were filed before the High court against this particular notification, claiming that the counting must be done station- wise. The High court ordered in favour of the petitioner. Aggrieved by this order, the ECI filed an SLP in the Supreme Court. The Supreme Court overturned the order of the High court.

The political parties find some or the other excuse to postpone the local body elections. It is a general phenomenon. If the ruling party does not want, there will be no elections. To avoid this, the Constitution was amended to ensure timely elections to the local bodies. Constitution mandates the establishment of local self-government institutions is the responsibility of the States (entry 5, List II, Seventh Schedule). But not all State governments were serious about empowering Panchayati Raj institutions as elections were not being conducted regularly.

Amendment to the Constitution 1992

The Constitution was amended in 1992 to define the term (five years) for these institutions. Simultaneously, another provision was made for setting up a constitutional authority, the SEC, on the lines of the EC to conduct regular panchayat elections.

The Article 243K, which provided for setting up of SECs, is drafted in almost the same language of Article 324 related to the EC. This means the SECs will have the same status and powers as the EC. The State Election Commissioner can only be removed via impeachment like the only method of removal for Central Election Commissioner.

In 2006, the Supreme Court cleared the doubts and held the two constitutional authorities enjoy the same powers. In Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad,(https://indiankanoon.org/doc/1736371/) the five-judge Constitution Bench headed by CJI of Supreme Court gave on 19th October 2006 a categoric direction that State governments should abide by orders of the SECs during the conduct of the panchayat and municipal elections, just like they follow the instructions of the EC during Assembly and Parliament polls.

The Courts cannot interfere in the conduct of polls to local bodies and self-government institutions once the electoral process has been set in motion. Article 243-O of the Constitution bars interference in poll matters set in motion by the SECs; Article 329 bars interference in such matters set in motion by the EC. Only after the polls are over can the SECs' decisions or conduct be questioned through an election petition.

The law is clear and the powers for the SEC make them independent and it is the duty of the Government and machinery to support the SEC to complete the process of elections as per the notification. In Andhra Pradesh, every step in conducting elections to Panchayats is made a point of constitutional controversy and being taken to Supreme Court after single judge and division bench of High Court of Andhra Pradesh.

When SEC deferred Elections to Panchayats in March 2020, the Government and SEC went up to the apex court several times. Thereafter, the Government removed him and appointed another as SEC, which again was escalated to SC and Nimmagadda Ramesh Kumar's was restored as Commissioner. Ramesh Kumar's attempt to complete the process of elections in 2021 is also facing legal challenges. To conduct elections is his basic duty. One has to question him if he does not initiate steps to conduct elections to panchayat bodies.

Supreme Court said in Election Commission of India Through Secretary v. Ashok Kumar and others, that '' that the Court must guard against any attempt at retarding, interdicting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say, that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material".

Rejecting the argument based on bad faith, the High Court bench in para 32 explained '' By the order dated 08.01.2021, the State Election Commission had decided to fulfil its obligation to hold election, which is overdue by almost 2½ years. Thus, the Commissioner was acting on the legitimate exercise of power that he has. It is not explained to us how in pursuing a legitimate exercise, the Commissioner had been acting mala fide in the sense of pursuing an illegitimate aim. In any event, the Court would be slow to draw adverse inference unless material of high order of credibility is placed before the Court regarding mala fide, more so, when imputations are attributed to holder of an office discharging high responsibility such as the Commissioner of the State Election Commission.''

At least now, the government should cooperate with SEC and complete the process of elections.

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)